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PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED AND DEFENDANT’S CROSS MOTION TO RENEW SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED; E-FILING WAS VOLUNTARY IN CHENANGO COUNTY SO FAILURE TO E-FILE WAS NOT A GROUND FOR REJECTION OF DEFENDANT’S MOTION PAPERS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment should have been denied and defendant’s cross motion to renew should have been granted. The court noted that Chenango County is a consensual or voluntary e-filing county and defendant’s hard copy filing should not have been rejected by the court (for failure to e-file):

… Supreme Court abused its discretion in granting plaintiff’s motion for a default judgment. Although defendant’s motion papers lacked specific details of the underlying circumstances for the delay, the delay herein was de minimis — one week — and should be excused … . Defendant timely opposed the motion, offering a meritorious defense. There is no indication that the default was willful or that plaintiff was prejudiced as a result of the late answer. Moreover, defendant appeared in the action when he opposed plaintiff’s motion for a preliminary injunction and temporary restraining order. Public policy favors the resolution of cases on the merits … . …

Supreme Court confused the cross motion to renew with a motion to reargue and summarily denied it since it was not made within 30 days. This time period applies solely to motions to reargue (see CPLR 2221 [d] [3] …). Preferred Mut. Ins. Co. v DiLorenzo, 2020 NY Slip Op 02845, Third Dept 5-14-20

 

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ALTHOUGH IT IS NOT SETTLED WHETHER THE RAPE SHIELD LAW APPLIES TO A CIVIL PROCEEDING, SUPREME COURT HAD THE AUTHORITY TO PROHIBIT THE QUESTIONING OF PLAINTIFF’S DAUGHTER ABOUT HER SEXUAL HISTORY TO PREVENT EMBARRASSMENT AND HARASSMENT IN THIS NEGLIGENT SUPERVISION CASE (THIRD DEPT).

The Third Department upheld Supreme Court’s protective order prohibiting plaintiff’s child from being questioned about her sexual history. The complaint alleged the child was raped during a sleep over at defendants’ home. The complaint alleged several theories of liability, including negligent supervision. Supreme Court held that the Rape Shield Law applied to this civil case. The Third Department determined it did not need to reach that issue, holding that the court had the authority to prohibit the testimony to protect the child from embarrassment:

… Supreme Court was required to balance plaintiff’s concern that the child’s sexual history is irrelevant, and that questions of this nature are nothing more than a form of intimidation and embarrassment, against defendants’ argument that the child had a motive to fabricate the allegations of the assault because of a purported pregnancy. The record reveals that Supreme Court undertook a balancing of these concerns.

We find that plaintiff met her burden of showing annoyance and embarrassment. The child’s sexual history, sexual conduct and pregnancies are not relevant or material to the elements of the causes of action for negligence, battery, intentional infliction of emotional distress or loss of services … . Moreover, it has been determined that there is limited value to testimony concerning the sexual past of a victim of a sexual assault; instead, it often serves only to harass the victim and confuse the jurors … . Lisa I. v Manikas, 2020 NY Slip Op 02846, Third Dept 5-14-20

 

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THE CONCEPTS OF ‘OVERWHELMING EVIDENCE’ AND ‘HARMLESS ERROR’ DISCUSSED IN DEPTH; THE MAJORITY FOUND THE EVIDENCE OVERWHELMING AND THE ERROR HARMLESS; THE CONCURRENCE FOUND THE EVIDENCE WAS NOT OVERWHELMING BUT FOUND THE ERROR HARMLESS UNDER A DIFFERENT ANALYSIS; THE DISSENT FOUND THE EVIDENCE WAS NOT OVERWHELMING AND THE ERROR WAS NOT HARMLESS (THIRD DEPT).

The Third Department reached different conclusions about how the erroneous denial of defendant’s motion to suppress the cell site location data should be treated on appeal under a harmless error analysis. The majority and the concurrence applied different harmless error analyses but concluded the conviction should be affirmed. The dissent argued the error was not harmless requiring a new trial. The decision includes useful, comprehensive discussions of “overwhelming evidence” and “harmless error. “The dissent summarized the three positions as follows:

From the dissent:

In essence, the majority applies the longstanding New York test of first assessing whether the evidence adduced at trial was overwhelming in favor of conviction, concludes that it was, and therefore the admission of the cell phone location data was harmless since it could not have influenced the result of the trial. The concurrence disagrees with the finding that the evidence of guilt was overwhelming, but finds the error of admitting the cell phone location data nonetheless harmless; the concurrence maintains that, since its effect was to favor, or disfavor, the contentions of each side equally, this is one of the exceedingly rare cases where, despite the absence of overwhelming evidence of guilt, the admission of tainted evidence, however misguided, was, in the words of the leading Court of Appeals case of People v Crimmins (36 NY2d 230, 242 [1975]), nothing more than the “sheerest technicality.” Because I believe that the other evidence of defendant’s guilt was not overwhelming, and the effect of admitting the cell phone location data not necessarily neutral, I dissent and would reverse the judgment of conviction. People v Perez, 2020 NY Slip Op 02684, Third Dept 5-7-20

 

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STANDARD PRACTICE OF USING THE SALE PROCEEDS TO PAY OFF THE EXISTING MORTGAGES ON THE SELLER’S PROPERTY AFTER THE CLOSING UPHELD BY THE MAJORITY; THE DISSENT ARGUED THE STANDARD PRACTICE VIOLATES THE TERMS OF THE STANDARD PURCHASE AND SALE AGREEMENT WHICH REQUIRES THE PROPERTY TO BE UNENCUMBERED AT THE CLOSING (THIRD DEPT).

The Third Department, affirming the grant of summary judgment to plaintiff seller, over a partial dissent, determined the standard real estate purchase and sale contract incorporates the standard practice of using the sale proceeds to pay off any mortgages on the property, even though those liens are not removed until after the closing. The defendant argued the plaintiff’s failure to turn over the property free of the mortgages at the time of the closing was a breach of the explicit terms of the contract. The dissent agreed. The decision includes a detailed and comprehensive discussion of the standard purchase and sale agreement and the standard closing practice:

Defendant argues that plaintiff did not have a marketable title at closing, as she could only provide a marketable title, as required under the contract, by providing a satisfaction of each mortgage lien at closing. However, this position would necessarily have required plaintiff to pay off each mortgage in advance and secure each satisfaction, and, in our view, is inconsistent with both the contract and the conduct of the parties.

It is significant that the parties used a “Standard Form Contract for Purchase and Sale of Real Estate” produced by the Capital Region Multiple Listing Service, Inc. … . Use of this standard form reflects the parties’ intent to embrace the common practice developed over the years in the real estate closing realm … . This common practice with respect to the existing mortgage liens is as follows — the seller obtains payoff letters from respective lenders, the purchaser brings corresponding bank checks to the closing payable to each lender, and either the title insurance agent or the seller’s counsel processes those payments to secure the required mortgage satisfaction … . Within 30 days of receipt of payment, the lenders are statutorily mandated to have a mortgage satisfaction “presented for recording to the recording officer of the county where the mortgage is recorded” (RPAPL 1921 [1] [a]). This protocol is consistent with the reality that the pertinent closing documents — the deed and the mortgage satisfactions — are recorded after the closing (see Real Property Law § 291). * * *

The concluding point is that defendant had documented assurance that the marketable title was being provided. Under these circumstances, we find that plaintiff duly performed under the contract. Defendant’s refusal to complete the transaction constituted a breach of contract. As such, Supreme Court properly granted plaintiff’s motion for summary judgment. ​Prendergast v Swiencicky, 2020 NY Slip Op 02686, Third Dept 5-7-20

 

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THE NOTICES INFORMED DEFENDANTS THAT THE MORTGAGE PAYMENTS ACCELERATED ON JANUARY 21, 2011; THE FACT THAT NOTICES REITERATING THAT SAME ACCELERATION DATE WERE SENT AS LATE AS NOVEMBER 2013 DID NOT CHANGE THE OPERATIVE DATE; THE FORECLOSURE ACTION COMMENCED IN MARCH 2017 WAS TIME-BARRED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the mortgage payments were accelerated on January 21, 2011. The defendants were notified of the acceleration date in December 2010. Additional notices were sent to defendants as late as November 2013, but all the notices reiterated that January 21, 2011 was the acceleration date. The foreclosure action commenced in March 2017 was deemed time-barred:

The December 2010 notice stated that, on January 21, 2011, “the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” Between July 2012 and November 2013, five additional notices were sent to defendants, each reiterating that “[t]he acceleration date of January 21, 2011 . . . remains in effect.” * * *

… [T]he December 2010 notice states that, “[i]f the default is not cured on or before January 21, 2011, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” This language, particularly the underlined language in the notice, indicates the date on which the debt was to be accelerated. A plain reading of the notice does not provide any suggestion that, except for curing the default, the outstanding debt would not be accelerated on that date. As such, the notice clearly and unequivocally indicates that the outstanding mortgage payments would be accelerated on January 21, 2011 … . The reiteration of this acceleration date in five subsequent letters only further evinces the acceleration date of January 21, 2011 … . MTGLQ Invs., LLP v Lunder, 2020 NY Slip Op 02690, Third Dept 5-7-20

 

FAILURE TO SPECIFY WHEN THE OBJECTION TO BE REVIEWED WAS MADE IN ANSWER TO QUESTION 15 OF THE APPLICATION JUSTIFIED THE BOARD’S REFUSING TO REVIEW IT, DESPITE THE FACT THAT THE DATE OF THE RELEVANT HEARING WAS INDICATED ELSEWHERE IN THE APPLICATION (SECOND DEPT).

The Third Department determined the Workers’ Compensation Board properly refused the employer’s application for review because the application did not indicate when the objection to be reviewed was made. The application indicated the objection was made at the hearing, but there were several hearings. The fact that the date of the hearing in question was indicated elsewhere in the application did affect the validity of the Board’s ruling:

The pertinent regulation, as well as the instructions in effect at the time that the employer filed its application for review, unambiguously required the employer to “specify the objection or exception that was interposed to the ruling [of the Workers’ Compensation Law Judge], and when the objection or exception was interposed” … . In response to question number 15 on the application for Board review, the employer set forth the specific objection but, in answering when such objection was interposed, indicated “at the hearing on the record.” As noted by the Board, because there were multiple hearings held in this matter, we cannot say that the Board abused its discretion in deeming the employer’s response to question number 15 to be incomplete based upon its failure to specify when such objection was interposed in order to satisfy the temporal element of the regulation …. Further, the fact that the date of the hearing at which the objection or exception was allegedly interposed appeared elsewhere on the application did not obviate the requirement for the employer to provide a complete response to question number 15, as the Board was not required to deduce when the employer’s objection or exception was interposed … . Matter of Rzeznik v Town of Warwick, 2020 NY Slip Op 02702, Second Dept 5-7-20

 

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THE EVIDENCE SUBMITTED TO THE GRAND JURY IN THIS DRUNK-DRIVING-ACCIDENT CASE SUPPORTED THE TWO COUNTS OF DEPRAVED INDIFFERENCE ASSAULT STEMMING FROM INJURIES SUFFERED BY THE TWO PASSENGERS; SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE COUNTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidence submitted to the Grand Jury supported the depraved indifference assault counts stemming from injuries suffered by the two passenger in a drunk driving accident after a police pursuit:

The … accident reconstruction revealed that defendant was driving 119 miles an hour five seconds before the accident, then slammed on his brakes and steered hard to the right, hurtling into the parking lot and striking a concrete barrier at approximately 60 miles per hour. * * *

Drunk driving cases do not ordinarily lend themselves to a finding of depraved indifference, nor does “every vehicular police chase resulting in death [or serious injury] . . . take place under circumstances evincing” it … . Unlike in cases where a defendant attempted to avoid harming others in the course of a chase … , however, the intoxicated defendant here was warned by one of his passengers that he should slow down and “was well aware that [he] was endangering [their] lives” by flouting traffic laws and fleeing a police officer at ludicrous speeds on local roads … . Moreover, the same passenger testified that defendant knew that the parking lot was a shortcut to another street and that he suddenly “turned into” it when she mentioned seeing a police cruiser. The grand jury could infer from this proof that defendant did not care about the welfare of his passengers and that he lost control of the vehicle not in an unsuccessful effort to navigate a bend in the road, but rather in a near-suicidal gambit to escape police by making an abrupt turn at high speed and trying to traverse the parking lot. It follows from those inferences that defendant “appreciated that he . . . was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences” … . Although innocent inferences could also be drawn from the evidence presented, legally sufficient proof nevertheless existed for the grand jury’s finding that defendant exhibited depraved indifference toward his passengers and, thus, Supreme Court erred in dismissing the two counts of assault in the first degree … . People v Edwards, 2020 NY Slip Op 02503, Third Dept 4-30-20

 

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THE WORKERS’ COMPENSATION BOARD MADE SEVERAL DECISIONS BUT REMITTED THE MATTER TO THE WORKERS’ COMPENSATION LAW JUDGE FOR ADDITIONAL RULINGS; THE ORDER APPEALED FROM THEREFORE WAS NONFINAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined the decision by the Workers’ Compensation Board was nonfinal and therefore the appeal could not be considered:

In reviewing these various decisions, the Board found, among other things, that claimant was entitled to awards from April 14, 1997 to September 1, 2011 at the previously established temporary partial disability rate of 66.6% and that claimant had reached maximum medical improvement, but remitted the case to the WCLJ [Workers’ Compensation Law Judge] for a determination of issues related to claimant’s alleged violation of Workers’ Compensation Law § 114-a, permanency and loss of wage-earning capacity … . …

This appeal must be dismissed. “We will not conduct a piecemeal review of the issues presented in a nonfinal decision in workers’ compensation cases that will be reviewable upon an appeal of the Board’s final decision” … . “Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not appealable” … . As none of the arguments raised on this appeal address potentially dispositive threshold legal questions, and “the nonfinal decision may be reviewed upon an appeal from the Board’s final determination, this appeal must be dismissed” … . Matter of Navarro v General Motors, 2020 NY Slip Op 02504, Third Dept 4-30-20

 

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PLAINTIFF-PASSENGER DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT-DRIVER’S NEGLIGENCE; DEFENDANT-DRIVER WAS STRUCK FROM BEHIND WHEN HE STOPPED QUICKLY AFTER AN SUV MERGED INTO DEFENDANT’S LANE (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff-passenger did not raise a question of fact about defendant-driver’s negligence in this traffic accident case. Plaintiff alleged defendant failed to keep a proper lookout when an SUV merged into defendant’s lane and stopped. Defendant was able to stop without hitting the SUV but was struck from behind by the Robbins vehicle:

“Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . “[W]here the lead driver is forced to brake and stop suddenly without striking the vehicle in front due to that vehicle coming to a sudden stop, there is no basis for imposing liability on that driver” … . Defendant testified at his deposition that he was driving in the right lane on a highway and that he saw the SUV move from the left lane to the middle lane. Defendant testified that, as the SUV was in the middle lane, he looked to his right to see if he “had an out to go” because there was a vehicle to the left of him. The SUV suddenly “jumped in front” of defendant without flashing a turning signal, hit the brakes and came to a complete stop. … Defendant braked and avoided hitting the SUV. Shortly thereafter, however, Robbins struck defendant’s vehicle in the rear. In view of the foregoing, defendant satisfied his moving burden by establishing that he was not negligent … . Guerin v Robbins, 2020 NY Slip Op 02511, Third Dept 4-30-20

 

A GENEALOGICAL ADVOCACY ORGANIZATION’S FREEDOM OF INFORMATION LAW REQUEST FOR MARRIAGE RECORDS FROM 1967 THROUGH 2017 PROPERLY DENIED ON ‘INVASION OF PRIVACY’ GROUNDS (THIRD DEPT).

The  Third Department, in a full-fledged opinion by Justice Colangelo, after a comprehensive analysis, determined the respondent NYS Department of Health properly refused petitioners’ request for records of marriages between 1967 and 2017 based upon “invasion of privacy” concerns. The petitioners are a “genealogical advocacy organization” and its officers seeking to add the marriage records to a searchable database:

In our view, respondent has satisfied its burden of showing that the requested information falls within this privacy exemption “by articulating a particularized and specific justification for denying access” … . Although individual marriage records are public, there is a material difference between providing access to individual records on a demonstration of need (see Domestic Relations Law § 19 [1]) and providing 50 years’ worth of recent marital indices to publish on the Internet. According this personal privacy exemption its “natural and [most] obvious meaning” … , we conclude that it applies to the recent records sought from respondent here. * * *

Petitioners do not even argue that disclosure here would promote the objectives of FOIL. “[I]t is precisely because no governmental purpose is served by public disclosure of certain personal information about private citizens that the privacy exemption” exists … . …

Who among us, in applying for a loan, a bank account or a credit card, has not been asked for our mother’s “maiden” name, or been directed to devise or change a password the creation of which called for information such as a town of origin, wedding anniversary, first school attended and the like. … Such specific identifying facts could readily be gleaned, with a few strokes of a keyboard, from the record indices that petitioners would, upon receipt, make available to the world. In contrast, the “public interest” that would presumably be served by such mass disclosure, as articulated by petitioners, is to, in essence, assist certain members of the public in their pursuit of what is essentially a hobby. In short, in this Internet age, the potential for harm to thousands of private citizens from the disclosure of the personal information at issue far outweighs the presumed benefit to a few genealogical enthusiasts. Thus, under these circumstances, nondisclosure and application of the personal privacy exemption is, we believe, “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . Matter of Hepps v New York State Dept. of Health, 2020 NY Slip Op 02517, Third Dept 4-30-20

 

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